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Wigfall v. City of Detroit

Supreme Court of Michigan

July 16, 2019

DWAYNE WIGFALL, Plaintiff-Appellant,
v.
CITY OF DETROIT, Defendant-Appellee. FAYTREON ONEE WEST, Plaintiff-Appellant,
v.
CITY OF DETROIT, Defendant-Appellee.

          Argued on application for leave to appeal April 11, 2019.

          Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Chief Justice: Bridget M. McCormack Chief Justice Pro Tem: David F. Viviano

         In Docket No. 156793, Dwayne Wigfall brought an action in the Wayne Circuit Court against the city of Detroit for injuries he sustained in a motorcycle accident allegedly caused when he hit a pothole on a city street. On advice from the city's Law Department, Wigfall sent a notice via certified mail addressed to the Law Department that included a description of the pothole, its location, and a description of plaintiff's injuries. An adjuster from the Law Department acknowledged receipt of Wigfall's claim. After Wigfall filed his complaint, the city moved for summary disposition under MCR 2.116(C)(7), arguing that Wigfall's claim was barred by governmental immunity because Wigfall failed to serve notice of his claim on the mayor, the city clerk, or the city attorney as required by MCL 691.1404(2) and MCR 2.105(G)(2). The court, Daniel A. Hathaway, J., denied the city's motion, and the city appealed. The Court of Appeals, Saad, P.J., and Cavanagh and Cameron, JJ., reversed and remanded for entry of an order granting the city's motion for summary disposition. 322 Mich.App. 36 (2017). Wigfall applied for leave to appeal in the Supreme Court, which ordered and heard oral argument on whether to grant the application or take other action. 501 Mich. 1089 (2018).

         In Docket No. 157097, Faytreon O. West brought an action in the Wayne Circuit Court against the city of Detroit, for injuries she allegedly suffered when she tripped on a pothole and fell while walking on a city street. West's counsel sent notice of the injury and highway defect to the city's Law Department via certified mail, instructing the city to immediately contact West's counsel if it believed that the notice did not comply with any applicable notice requirements. The Law Department received the letter, and an adjuster from the Law Department acknowledged receipt of West's claim. After West filed her complaint, the city moved for summary disposition under MCR 2.116(C)(7), arguing that West had failed to comply with the notice requirement in MCL 691.1404(2) because she had not served an individual who may lawfully be served with civil process. The trial court, John A. Murphy, J., granted summary disposition in favor of the city and denied West's motion for reconsideration. West appealed, and the Court of Appeals, Jansen, P.J., and Cavanagh and Cameron, JJ., affirmed in an unpublished per curiam opinion issued December 12, 2017 (Docket No. 335190). West applied for leave to appeal in the Supreme Court, which ordered and heard oral argument on whether to grant the application or take other action. 501 Mich. 1089 (2018).

         In a unanimous opinion by Justice Viviano, in lieu of granting leave to appeal, the Supreme Court held:

         Plaintiffs complied with the requirements of MCL 691.1404(2) by serving their notices on the city's Law Department, because the Law Department is an agent of defendant's city attorney- also known as the Corporation Counsel-and is charged with receiving notice under the city's charter and ordinances.

         1. Under the governmental tort liability act, MCL 691.1401 et seq., unless one of five exceptions applies, governmental agencies are immune from tort liability when they are engaged in a governmental function. One such exception is the highway exception, MCL 691.1402(1), which provides in part that a person who sustains bodily injury by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency. A claimant seeking recovery under the highway exception must comply with MCL 691.1404(1), which requires the injured person to serve a notice on the governmental agency that specifies the exact location and nature of the defect, the injury sustained, and the names of the witnesses known at the time by the claimant. MCL 691.1404(2) provides that the notice may be served upon any individual, either personally or by certified mail, who may lawfully be served with civil process directed against the governmental agency. In turn, MCR 2.105(G)(2) provides that service of process on a municipal corporation may be made by serving a summons and a copy of the complaint on the mayor, the city clerk, or the city attorney.

         2. Plaintiffs complied with the statute's notice requirement because the city authorized its Law Department to receive notices of injuries sustained and of highway defects. Under the common law of agency, the Law Department is an agent of the Corporation Counsel. The city acknowledged that the Corporation Counsel is the administrative head of its Law Department, and the city's charter provides that the Law Department "is headed by the Corporation Counsel who is the duly authorized and official legal counsel for the City of Detroit and its constituent branches, units and agencies of government." As the head of the Law Department, the Corporation Counsel has the right to control the Law Department. Consequently, the Law Department and its members are agents of the Corporation Counsel. That the Law Department has the authority to receive the notice required by MCL 691.1404(2) on behalf of the Corporation Counsel is supported by the practical reality that the Corporation Counsel is not individually capable of receiving notice for every claim filed against the city. Further, a city ordinance provides that all claims of whatever kind against the city, excluding certain claims not relevant here, shall be first submitted to and reviewed by the Law Department. Because receiving notice is necessary for the Law Department to exercise its express authority to receive and review claims, the Law Department had implied authority to receive service of the notices of injury and highway defects required by MCL 691.1404(2). Moreover, the Law Department's receipt of these notices was the usual practice to which the Corporation Counsel had knowingly acquiesced.

         Reversed and remanded to the Wayne Circuit Court for further proceedings.

          Chief Justice McCormack, joined by Justice Bernstein, concurred in full with the majority but wrote separately to state that the Corporation Counsel and the Law Department are functionally interchangeable barring exceptional circumstances not present in this case. She further stated that advancing such a false technical argument ill served both lawyers generally and their clients specifically.

         BEFORE THE ENTIRE BENCH

          OPINION

          Viviano, J.

         The issue in these cases is whether plaintiffs, Dwayne Wigfall and Faytreon West, properly served their notices of injuries sustained and of highway defects. MCL 691.1404(2) provides that this notice "may be served upon any individual . . . who may lawfully be served with civil process directed against the governmental agency, anything to the contrary in the charter of any municipal corporation notwithstanding." MCR 2.105(G)(2) states that service may be made upon a city by leaving the summons and a copy of the complaint with "the mayor, the city clerk, or the city attorney . . . ." Here, West and Wigfall served their notices on the Law Department of the city of Detroit (the City). We hold that plaintiffs complied with the requirements of MCL 691.1404(2) by serving their notices on the Law Department, which is an agent of the Corporation Counsel.[1]Therefore, we reverse the Court of Appeals in both cases and remand to the trial court for further proceedings not inconsistent with this opinion.

         I. FACTS

         A. WIGFALL v DETROIT

         Wigfall alleges that he was driving his motorcycle on Algonac Street in Detroit when he hit a pothole. As a result, Wigfall fell off his motorcycle and sustained multiple injuries. Through counsel, Wigfall contacted the City's Law Department and was informed that his notice of injury and highway defect should be addressed to "City of Detroit Law Department -- Attention Claims." Consequently, Wigfall sent notice via certified mail to "City of Detroit Law Department - CLAIMS." The notice stated, "Pursuant to MCL 600.6431, this letter is intended to provide you with statutory notice that our client, Dwayne Wigfall, suffered personal injuries as a result of a defect under the City of Detroit's care and control on June 9, 2014 at approximately 9:00 p.m." The notice also included a description of the pothole, its location, and a description of plaintiff's injuries. The Law Department received the notice on September 22, 2014.

         An adjuster from the Law Department contacted Wigfall's attorney via a letter dated December 3, 2014. The letter stated, "The filing of your client's claim regarding the above-referenced incident is hereby acknowledged." The adjuster also requested additional documents to proceed with processing the claim.

         Wigfall later filed the instant complaint against the City. The City sought summary disposition under MCR 2.116(C)(7), asserting that Wigfall's claim was barred by governmental immunity because the statutory notice was not served upon an individual who may lawfully be served with civil process, as MCL 691.1404(2) requires. The trial court denied the City's motion for summary disposition. The City appealed, and the Court of Appeals reversed, holding that Wigfall failed to comply with MCL 691.1404(2).[2] Wigfall applied for leave to appeal in this Court. We scheduled oral argument and requested briefing on the following issue, among others: "[W]hether an individual described in MCR 2.105(G)(2) can delegate the legal authority to accept lawful process under MCL 691.1404(2), see 1 Mich. Civ Jur Agency § 1 (2018)."[3]

         B. WEST v DETROIT

         West alleges that she was walking on Mansfield Street in Detroit when she tripped on a pothole and fell, suffering injuries as a result. West's counsel sent notice of the injury and highway defect to the City's Law Department via certified mail. It instructed the City, "If you believe that this notice does not comply in any way with any applicable notice requirements, immediately contact the undersigned and any additional information required by statu[t]e, ordinance, rule, or regulation will be promptly furnished." The Law Department received the letter on August 8, 2014. As with Wigfall, a municipal adjuster responded with a letter stating, "The filing of your client's claim regarding the above-referenced incident is hereby acknowledged" and requesting additional documentation.

         West later filed the instant complaint, and the City filed a motion for summary disposition under MCR 2.116(C)(7), arguing-as it did in Wigfall-that West had failed to comply with the notice requirement in MCL 691.1404(2) by failing to serve an individual who may lawfully be served with civil process. The trial court granted summary disposition in favor of defendant.

         West moved for reconsideration, arguing that the trial court erred because the notice statute, MCL 691.1404(2), states that "the notice may be served upon any individual" and the word "may" is permissive and not mandatory. The trial court denied the motion. West appealed, and the Court of Appeals affirmed in an unpublished per curiam opinion, citing its earlier decision in Wigfall v Detroit.[4] West then filed an application for leave to appeal in this Court. This Court scheduled oral argument and requested briefing on the following issue, among others: "[W]hether an individual described in MCR 2.105(G)(2) can delegate the legal authority to accept lawful process under MCL 691.1404(2), see 1 Mich. Civ Jur Agency § 1 (2018)."[5]

         II. STANDARD OF REVIEW

         "This Court reviews the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law."[6]" 'When a motion is filed under [MCR 2.116(C)(7)], the court must consider not only the pleadings, but also any affidavits, depositions, admissions or documentary evidence that is filed or submitted by the parties.' "[7] "The contents of the complaint are accepted as true unless contradicted by documentation submitted by the movant."[8] A question of statutory interpretation is a question of law that we also review de novo.[9]

         III. ANALYSIS

         Under the governmental tort liability act, MCL 691.1401 et seq., unless one of five exceptions applies, governmental agencies are immune from tort liability when they are engaged in a governmental function.[10] One such exception is the highway exception, MCL 691.1402(1), which provides that "[a] person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency."

         A claimant seeking recovery under the highway exception must comply with the notice requirements of MCL 691.1404, which provides, in relevant part:

(1) As a condition to any recovery for injuries sustained by reason of any defective highway, the injured person, within 120 days from the time the injury occurred, except as otherwise provided in subsection (3) shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.
(2) The notice may be served upon any individual, either personally, or by certified mail, return receipt requested, who may lawfully be served with civil process directed against the governmental agency, anything to the contrary in ...

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